Melissa M. Williams v. Office of Personnel Management

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MELISSA M. WILLIAMS,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2023-1233
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0831-22-0396-I-1.
______________________
Decided: May 21, 2025
______________________
J OHN J. T ORIKASHVILI , Law Office of John J. Torikash-
vili, PA, Aventura, FL, argued for petitioner.
ANNE D ELMARE , Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent. Also represented by
REGINALD T HOMAS B LADES , J R., P ATRICIA M. MCC ARTHY ,
YAAKOV R OTH .
______________________
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WILLIAMS v. OPM 2
Before M OORE, Chief Judge, CLEVENGER and CHEN,
Circuit Judges.
CLEVENGER , Circuit Judge.
Ms. Melissa Williams seeks to overturn the final deci-
sion of the Merit Systems Protection Board (“Board”) which
upheld the United States Office of Personnel Manage-
ment’s (“OPM”) decision to deny Ms. Williams survivor an-
nuity benefits purportedly awarded to her by her deceased
former husband, Mr. Haywood Nichols. Williams v. Off. of
Pers. Mgmt., No. AT-0831-22-0396-I-1 (M.S.P.B. Aug. 29,
2022) (“Final Order”).1 For the following reasons, we re-
verse the Board’s final decision and remand the case for
further proceedings consistent with this opinion.
BACKGROUND
After being married in 1978 and later divorced,
Ms. Williams and Mr. Nichols remarried in 1987.
Mr. Nichols retired from federal service in 1989, while he
and Ms. Williams were married, and as part of his retire-
ment, Mr. Nichols elected a survivor annuity for Ms. Wil-
liams.
Ms. Williams and Mr. Nichols divorced a second time
on June 28, 2006. As part of the divorce process, the two
participated in mediation that resulted in a Marital Settle-
ment Agreement (“MSA”). See SAppx49–56.2 The MSA
stated, in relevant part: “the husband acknowledges that
there are Survivor Benefits in the favor of the wife from his
pension plan. The husband agrees that he will not change
1 The Board’s initial decision became the Board’s fi-
nal order when neither party filed a petition for review or
petition to vacate the decision within 35 days after issu-
ance. See 5 C.F.R. § 1201.113.
2 “SAppx” refers to the supplemental appendix at-
tached to Respondent’s Response Brief.
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WILLIAMS v. OPM 3
this provision.” SAppx49–50. The Final Judgment of Dis-
solution of Marriage, ordered by the Circuit Court of the
Seventeenth Judicial Circuit in and for Broward County,
Florida, on June 28, 2006 (“first court order”), “ratified and
made part of this final judgment” the MSA. SAppx47–48.
On July 28, 2006, Mr. Nichols notified OPM of his divorce
and requested termination of the survivor annuity benefit
for Ms. Williams. SAppx2.
Unaware of Mr. Nichols’ July 28, 2006 notification to
OPM, Ms. Williams submitted the first court order to OPM
seeking acknowledgment of her future right to a survivor
annuity benefit. In its January 27, 2009 response, OPM
informed her that the first court order was “unacceptable
for Federal survivor annuity benefit processing” because
“[t]his court order does not use terms that are sufficient to
identify this retirement system as explained in section
838.911 of Title 5 of the Code of Federal Regulations.”
SAppx43. OPM also sent letters to Ms. Williams on August
18, 2009, and February 3, 2010, again stating that she was
not eligible to receive a former spouse survivor annuity and
further adding that it “stopped the reduction in Mr. Nich-
ols’ annuity that provides for a survivor benefit effective
the first day of the month following [the] divorce.”
SAppx41–42.
In light of OPM’s letters, Ms. Williams returned to the
state court which entered the first court order, and on July
1, 2010, that court issued a Court Order Acceptable for Pro-
cessing (“second court order”), which specifically awarded
Ms. Williams a “former spouse survivor annuity under the
Civil Service Retirement System.” SAppx44–46. After re-
viewing the second court order, OPM sent Ms. Williams a
letter on September 11, 2010, informing her that it “in-
tend[ed] to honor the . . . former spouse’s survivor annuity
award.” SAppx39. However, less than a month later, on
October 7, 2010, in an about-face, OPM stated that it could
not honor the “court order” because it did “not use terms
that are sufficient to identify [the] retirement system” and
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WILLIAMS v. OPM 4
because the “court order [did] not expressly award a former
spouse survivor annuity.” SAppx37.
Despite OPM’s earlier rejections, following Mr. Nichols’
death on February 3, 2019, Ms. Williams applied for survi-
vor annuity benefits. In contravention of its statements
within its 2009 and 2010 letters, OPM provided Ms. Wil-
liams survivor annuity benefits from February 4, 2019,
through September 30, 2020. However, OPM stopped the
payments on October 26, 2020, and sent a letter to Ms. Wil-
liams on February 2, 2022, informing her she would need
to repay OPM the $31,361.47 in survivor annuity benefits
“erroneously paid” to her. SAppx35–36.
Ms. Williams sought reconsideration of OPM’s Febru-
ary 2, 2022 initial decision, and in its reconsideration deci-
sion, OPM found “that applicable laws and regulations
[were] correctly applied” and Ms. Williams was “not eligible
to receive a former spouse survivor annuity.” SAppx33.
OPM added that “[w]hile [it] sympathize[s] with the cir-
cumstances” in Ms. Williams’ case, “the law is specific on
this point, and [OPM] [has] no administrative discretion in
this matter.” Id.
Ms. Williams timely appealed to the Board but she did
not seek a waiver of the overpayment. Rather, she argued
that an overpayment did not exist because she was entitled
to a survivor annuity benefit.
The Board affirmed OPM’s reconsideration decision.
The Board found that the language used in the first court
order was “not sufficient to award [Ms. Williams] a survi-
vor annuity as it does not specifically identify the pension
plan, using words such as ‘FERS,’ ‘CSRS,’ OPM, or ‘Federal
Government.’” Final Order at 6. Because the first court
order did not use these words, it was “not a ‘court order
acceptable for processing’ under the applicable regula-
tions.” Id. Turning to the second court order, the Board
found that it was unenforceable under OPM regulations as
it modified the first court order but was issued after the
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WILLIAMS v. OPM 5
date of Mr. Nichols’ retirement. Id. The Board acknowl-
edged that Ms. Williams “bargained for and gave up certain
things, including alimony,” to secure the survivor benefits
annuity. Id. at 7. However, the Board concluded it was
“without authority” to award survivor annuity benefits be-
cause Ms. Williams had failed to “strictly meet the statu-
tory and regulatory criteria governing the benefits she
[sought].” Id.
Ms. Williams timely appealed to this court. We have
jurisdiction to review the Board’s decision under 28 U.S.C.
§ 1295(a)(9).
D ISCUSSION
I
A “former spouse of a deceased [federal] em-
ployee . . . is entitled to a survivor annuity . . . if and to the
extent expressly provided for . . . in the terms of any decree
of divorce.” 5 U.S.C. § 8341(h)(1). Further, a “modifica-
tion” to a divorce decree “shall not be effective” “if such
modification is made after the retirement or death of the
employee” and “to the extent that such modification in-
volves an annuity.” Id. § 8341(h)(4).
OPM’s regulations state that a “court order awarding a
former spouse survivor annuity” is acceptable only if “it ex-
pressly awards a former spouse survivor annuity.” 5 C.F.R.
838.804(a). In order to “expressly award” a survivor annu-
ity, the court order must first “[i]dentify the retirement sys-
tem using terms that are sufficient to identify the
retirement system as explained in [5 C.F.R.] § 838.911; and
[e]xpressly state that the former spouse is entitled to a for-
mer spouse survivor annuity using terms that are suffi-
cient to identify the survivor annuity as explained in [5
C.F.R.] § 838.912.” Id. §§ 838.804(b)(1)–(2).
5 C.F.R. § 838.911(a) specifies that a court order “iden-
tif[ies] the retirement system affected,” and thus satisfies
the requirements of § 838.804(b)(1), by using language that
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WILLIAMS v. OPM 6
includes “[f]or example, ‘CSRS,’ ‘FERS,’ ‘OPM,’ or ‘Federal
Government’ survivor benefits.” The requirements of
§ 838.804(b)(1) can alternatively be met with a “court order
that requires an employee or retiree to maintain survivor
benefits covering the former spouse . . . if the former spouse
was covered by a CSRS or FERS survivor annuity . . . at
the time of the divorce.” Id. § 838.911(d).
5 C.F.R. § 838.912 specifies that a court order
“award[s] a former spouse survivor annuity” in accordance
with § 838.804(b)(2) if it uses terms “such as ‘survivor an-
nuity,’ ‘death benefits,’ [or] ‘former spouse survivor annuity
under 5 U.S.C. 8341(h)(1).’” Id. § 838.912(a). The require-
ments of § 838.804(b)(2) can also be satisfied with a “court
order that requires an employee or retiree to maintain sur-
vivor benefits covering the former spouse . . . if the former
spouse was covered by a CSRS or FERS survivor annu-
ity . . . at the time of the divorce.” Id. § 838.912(b)(2).
II
In upholding OPM’s denial of Ms. Williams’ survivor
annuity benefits, the Board examined the requirements of
5 C.F.R. § 838.911 and nothing more to find that the first
court order did not “specifically identify the pension plan,
using words such as ‘FERS,’ ‘CSRS,’ OPM, or ‘Federal Gov-
ernment.’” Final Order at 6. Therefore, according to the
Board, “the first court order [was] insufficient to award a
survivor annuity benefit because its language [did] not spe-
cifically identify the retirement system to which the survi-
vor annuity refers, as required by OPM’s regulations.” Id.
We set aside a Board’s decision if it is “(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in ac-
cordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c).
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WILLIAMS v. OPM 7
Ms. Williams argues that this court should set aside
the Board’s decision because it failed to apply and analyze
the three-part framework this court articulated in Down-
ing v. Off. of Pers. Mgmt., 619 F.3d 1374 (Fed. Cir. 2010).
See Oral Arg. at 3:26–4:45, 6:27–6:40, Williams v. Off. of
Pers. Mgmt., No. 2023-1233 (Fed. Cir. May 5, 2025),
https://oralarguments.cafc.uscourts.gov/default.aspx?fl=
23-1233_05052025.mp3 (hereinafter “Oral Arg.”). Accord-
ing to Ms. Williams, because the MSA used the term “Sur-
vivor Benefits,” Mr. Nichols “explicitly intended to award”
Ms. Williams “survivor annuity benefits,” thus obligating
the Board to analyze whether the first court order satisfied
the three-part framework even if the order failed to use
words specified in the OPM regulations.3 Pet’r’s Opening
Br. 11; see also Oral Arg. 5:19–6:20.
This court has repeatedly held that “‘magic words’ are
not required to assign a CSRS survivor annuity in favor of
a former spouse,” and that failure in a court order to pro-
vide specific identification of a survivor annuity plan with
words such as FERS, CSRS, and the like is not fatal to an
award of survivor benefits. Fox v. Off. of Pers. Mgmt., 100
F.3d 141, 145–46 (Fed. Cir. 1996). When a court order pur-
portedly awarding survivor annuity benefits does not con-
tain “any magic words,” Fox “set[s] forth the framework for
analyzing whether” such a court order “provides the survi-
vor annuity benefit under [5 U.S.C.] § 8341(h)(1).” Down-
ing, 619 F.3d at 1377. Under the Fox/Downing framework,
a “court must first determine whether the order contains a
pertinent clause regarding a survivor annuity; second, if
such a clause exists, the court ‘must inquire whether the
operative terms in that clause can fairly be read as
3 Ms. Williams does not challenge the Board’s deci-
sion that, under OPM regulations, the second court order
cannot be enforced because it was a modification to a di-
vorce decree that occurred after Mr. Nichols retired.
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WILLIAMS v. OPM 8
awarding the annuity’; and third, if it does, the court must
‘examine any evidence introduced concerning the marriage
parties’ intent and the circumstances surrounding the exe-
cution of the document to interpret the clause.’” Id. (citing
Hayward v. Off. of Pers. Mgmt., 578 F.3d 1337, 1345 (Fed.
Cir. 2009) and Fox, 100 F.3d at 146).
Instead of applying the Fox/Downing three-part frame-
work, the Board seemingly engaged in a search for “magic
words.” The Board’s examination of the first court order
limited itself to looking only for words similar to those
listed in 5 C.F.R. § 838.911. This was clear legal error.
Our cases hold that a divorce decree which simply men-
tions the award of “Survivor Benefits” is sufficient to trig-
ger an analysis under the Fox/Downing three-part
framework. See Fox, 100 F.3d at 142–45 (holding that “[i]n
using the term ‘Survivors Benefit Plan’ . . . [the divorced
parties] clearly intended to encompass the CSRS survivor
annuity” and further examining the “circumstances sur-
rounding” the divorce decree in accordance with the three-
part framework); Snyder v. Off. of Pers. Mgmt., 463 F.3d
1338, 1340–43 (Fed. Cir. 2006) (holding that a section of
the divorce decree relating to “OTHER SURVIVOR
BENEFITS” which discussed “Pre-retirement Survivor
benefits” could “fairly be read as providing a post-retire-
ment survivor annuity,” thus requiring “the Board . . . to
examine evidence . . . to determine whether it dictates an-
other possible meaning for the clause”); Hayward, 578 F.3d
at 1340, 1346 (holding that a divorce decree that stated
“Survivor Benefit Plan,” without identifying the specific
plan, could “fairly be read as awarding a CSRS annuity”
after analyzing the other circumstances of the divorce in
accordance with the three-part framework). Cf. Warren v.
Off. of Pers. Mgmt., 407 F.3d 1309, 1314 (Fed. Cir. 2005)
(holding that the three-part framework was not applicable
to a divorce decree that did not mention survivor benefits
and that referenced benefits that had “no sensible applica-
tion to a survivor annuity”).
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WILLIAMS v. OPM 9
In Ms. Williams’ case, the MSA states: “The husband
acknowledges that there are Survivor Benefits in favor of
the wife from his pension plan.” SAppx49 (emphasis
added). The mention of “Survivor Benefits” is similar to
language in other divorce decrees where we have required
analysis under the Fox/Downing three-part framework.
See Fox, 100 F.3d at 142, 145 (“Survivors Benefit Plan”);
Snyder, 463 F.3d at 1339–40, 1343 (“SURVIVOR
BENEFITS” and “Pre-retirement Survivor benefits”); and
Hayward, 578 F.3d at 1346–47 (“Survivor Benefit Plan”).
Our cases demonstrate that the first court order’s use of
the term “Survivor Benefits” is a “pertinent clause regard-
ing survivor annuity” that required the Board to engage in
the other parts of the Fox/Downing three-part framework.
See Downing, 619 F.3d at 1377. Because the Board did not
analyze the first court order under the Fox/Downing three-
part framework, we must set aside the Board’s decision.4
CONCLUSION
For the reasons explained above, we reverse the
Board’s ruling that Ms. Williams was not entitled to survi-
vor annuity benefits and remand for the Board to judge Ms.
Williams’ survivor annuity benefits under the three-part
framework articulated in Fox/Downing.
4 We note that Ms. Williams may also be entitled to
survivor annuity benefits under the provisions of 5 C.F.R.
§§ 838.911(d), 838.912(b)(2), because the first court order,
incorporating the MSA, specified that Mr. Nichols “[would]
not change,” i.e., would maintain, Ms. Williams’ survivor
annuity benefits. Because we generally do not consider is-
sues not decided below, we leave it to the parties and the
Board on remand to determine if these regulations provide
an alternative basis under which Ms. Williams is entitled
to the survivor annuity benefits. See Singleton v. Wulff,
428 U.S. 106, 120 (1976).
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WILLIAMS v. OPM 10
REVERSED AND REMANDED
COSTS
No costs.
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